Federal Court Says First-Sale Doctrine Covers Software, Too

New10k writes "The US District Court in Seattle has rejected Autodesk's myriad arguments regarding its software licenses and found in favor of eBay seller Timothy S. Vernor. The ruling started by ruling that Vernor was within his rights to resell copies of AutoCAD Release 14 he got in an auction. Once the court settled the legitimacy of reselling, it used that ruling as a lens to dismiss all of Autodesk's various claims. More than once the court described Autodesk's arguments as 'specious' and 'conflicted.'" Autodesk managed to have Vernor's eBay account pulled, after he listed for sale copies of AutoCad 14. He sued Autodesk in response.

Re:What about the ebay account?

[phpmysqldev]

This article [blog.com] goes into more detail about that. Apparently his eBay account was restored (and good thing, I would be livid if I had a 10k+ feedback powerseller account taken from me)

Likewise in Finland since a number of years

[vinsci]

A similar ruling is in effect in Finland since a number of years. The case was vs. Microsoft, decided by the supreme court that reselling MS Windows licenses is perfectly OK and Microsoft can't stop it. Don't have the reference handy, sorry.

Re:Workaround

[Gat0r30y]

I suppose they could, but many folks are going to want to work in AutoCad without an internet connection. It would make a little more sense to stick a license on every box of software - and on install associate it with a user account. Even that though probably isn't optimal - considering many companies just have a license server for such programs.

Re:This is going to get to the Supreme Court

[whoever57]

There's no way Autodesk is going to let this ruling stand unappealed,

Autodesk might let it stand, since this is only a lower court verdict and they might consider it prudent to not get a appeals court verdict poking holes in EULAs.

there is NO SIGNIFICANCE to this ruling

[Anonymous Coward]

I just read this article. The author has no idea what a summary judgment motion is, nor the significance of having it denied. Summary judgment motions are just long shot motions brought early in a case to try to dismiss it if there are no facts in dispute. The significance of a *denial* of such a request simply means there are facts in dispute, or the law isn't so clear. IT IS A NON-EVENT. Nobody has won -- the case simply proceeds.

Re:Likewise in Finland since a number of years

[Sique]

Same in Germany. Google for "Microsoft" and "Snogard".

Re:Autodesk = a true evil empire

[TheRealMindChild]

I can surely attest to this. While in school for CS, I was a junior administrator in the MIS department, doing things like... well, everything that went wrong on the computer network. We dreaded when anything went wrong with Autocad. It was a bloody nightmare. Dongles would just stop working and their customer support would pretty much tell us that we were lying and trying to pirate the software. And it was like talking to a brick wall. No amount of sales receipts or serial numbers mattered. They didn't even care. Their solution every single time was to "Buy a new copy".

On top of that, upgrading almost never worked. It got to the point where an upgrade to Autocad meant loading up a new system image, then installing it first before anything else.

Re:First-Sale cuts both ways

[icebike]

That act is specifically prohibited by the Copyright act. (At your discretion of course).

See http://en.wikipedia.org/wiki/First-sale_doctrine [wikipedia.org]

The worst thing was ...

[Anonymous Coward]

If you read some of the other articles listed on the mentioned site, you'll learn that after he got each attempted sale pulled because of AutoCAD's DMCA complaints to eBay, and then restored (5 times!), he then got his entire sellers account frozen and not restored for a month. This affected not only the disputed AutoCAD sales, but everything else he was selling (vintage comic books, apparently).

All this from spurious DMCA complaints when the guy wasn't copying anything. Here's a boxed, legitimate version of AutoCAD, a copy made by AutoCAD, for sale. In what bizarro world does copyright even apply to that situation?

By the usual analogy, it would be like Ford suing a used car dealer for selling used Ford cars on the grounds that Ford's copyright had been infringed. Huh?

At most it's a contract issue. And a dubious, shrink-wrapped contract at that. The DMCA is irrelevant.

Re:Workaround

[egburr]

I would hope it is the other way around, that companies (such as Blizzard for WoW) would no longer be allowed to prohibit the re-use of the keys that come with the software. Since the key is what allows the software to be used, the software is useless without the key. Since the key is part of the software package, it should be usable by the rightful owner, whether that is the original owner or the second owner or the third owner, and so on.

Skirting this by saying the key allows you to create an account and that the account is non-transferable is bogus as long as the key can only be used to create only one account.

I did buy a "like new" copy of WoW on ebay a couple years ago. I was a bit put out when the key was rejected due to having already been used. After reading the EULA thoroughly (not that I agree to a unilateral after-purchase change of conditions), I argued with Blizzard about my non-working key. After talking with a lawyer friend, and him sending them a letter, they sent me a new key.

One of they key points in their EULA was the paragraph:
You may permanently transfer all of your rights and obligations under the License Agreement to another by physically transferring the original media (e.g., the CD-ROM or DVD you purchased), all original packaging, and all Manuals or other documentation distributed with the Game; provided, however, that you permanently delete all copies and installations of the Game in your possession or control

The key is part of the "other documentation" and must be transferred to the new owner. Preventing someone from using it just because they are not the original owner of it is contrary to the first-sale doctrine.

Furthermore, there is nothing in the EULA indicating any possibility that the key cannot be used by its rightful owner. The only place that is mentioned is the Terms of Use which are displayed when you go to use the key. Prohibiting subsequent owners from using the key completely destroys the intended use of the software, so should not be allowed as long as first-sale doctrine principals apply.

Re:First-Sale cuts both ways

[Uncle Focker]

That rental company has no right to do that under the First-sale doctrine. If they are truly doing so you need to take action to stop them. It's funny that you tried to argue against the First-sale doctrine protections by providing an example of something that isn't protected by said doctrine. A rental company must have a contract with the copyright owner in order to rent out their copyrighted works.

Re:Workaround

[Gewalt]

Wow software is free, and always has been. YES, you pay for the pretty book and the pretty package, but you can always just borrow your friends for the install instead. Where you pay is for the account on their servers. (oh, and in a totally shitty deal, you also had to pay to "activate" the expac features. that was fucked up and was one of the reasons I left wow)

Google's Attorney's Blog

[jmichaelg]

This blog entry by William Patry [blogspot.com] adds quite a bit of background.

Patry is Senior Copyright Counsel for Google.

Also what about Cisco routers and switches?

[Anonymous Coward]

Cisco has always claimed that when you buy a new router or catalyst switch from them that the IOS license is only good for the original purchaser of the hardware. You can legally sell the h/w as used equipment to another party later, but cannot legally transfer the firmware license to the buyer, they are supposed to have to re-purchase the IOS license again from Cisco, else they are illegally running it if the used router or switch came with the IOS software still present in its flash memory.

Re:First-Sale cuts both ways

[Gewalt]

If they are renting their legally purchased physical copy, then yes, they are exercising their first sale rights, and you can GFY for thinking you have the right to stop them.

If they are duplicating your material, then you have every right to sue them for infringement.

Re:First-Sale cuts both ways

[Uncle Focker]

This post clearly shows that someone doesn't understand either the First-sale doctrine or the reason why libraries can lend out books and movies for free. I suggest no one listen to the nonsense he put out. The rental company has no right under the First-sale doctrine to rent the person's video if they had no permission to do so. Since this rental company is also clearly not a library they are not covered under the same protections afforded to such institutions. The AC, if their claim is real, should use his status as the copyright owner to stop this violation of his rights.

Re:there is NO SIGNIFICANCE to this ruling

[Anonymous Coward]

Indeed. Denying summary judgment just means the case goes forward. From TFA:

The case is not over; the court has ordered both sides to sit down and discuss whether the case should continue and settle Vernor's claim that Autodesk engaged in unfair trade practices in violation of state law in either California (Autodesk's home) or Washington state (Vernor's home). Their report to the court is due June 27.

Precedent

[Weaselmancer]

Why generate such bad press over a single copy...

Because they were hoping to set a precedent, that's why.

Same reason the RIAA backs out anytime one of their victims looks like he can put up a decent fight. Precedent is powerful.

The difference here being that Autodesk got their asses handed to them because they decided to see their illogical claim all the way through to a ruling. I'm sure they were hoping for a ruling in their favor so that future claims would be a rubber-stamp process.

Unfortunately for them, they lost. Surprise! Now the rubber stamp is in the hands of the consumers. You takes your chances and you rolls your dice, right?

Re:First-Sale cuts both ways

[pegr]

That rental company has no right to do that under the First-sale doctrine. If they are truly doing so you need to take action to stop them. It's funny that you tried to argue against the First-sale doctrine protections by providing an example of something that isn't protected by said doctrine. A rental company must have a contract with the copyright owner in order to rent out their copyrighted works
 
B*LLSH!T. There are exceptions for phono records and computer software, but otherwise, it is perfectly legal to rent copyrighted works. Do you think your local video store has a contract with all the movie studios?

It's funny that you have no clue what the heck you're talking about.

Re:First-Sale cuts both ways

[stubear]

Actually First Sale only allows one to resell their physical copy, nothing else. If they want to rent it then they have to enter into an agreement with you to do so. Copyright law protects you here. Ever wonder why rental late fees were so high? Rental stores pay (or they used to anyway; not sure how it works now) more for each copy explicitly for the right to rent the video and replacing them was expensive. The copyright holder gets more for these discs, though nothing compared to what the video stores could ultimately make for a new release, and video stores get to rent the videos. I'd suggest contacting a lawyer and proceed from there. You should be entitled to more per copy if they want to rent the video.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Likewise in Finland since a number of years

[vinsci]

I think it's this one: http://www.finlex.fi/fi/oikeus/kko/kko/2003/20030088 [finlex.fi] (I don't have time to verify it, though).

A commentary on the case: Ostajalla oikeus myydä ostamansa tietokoneohjelman kappale edelleen — KKO:n ratkaisu levittämisoikeuden raukeamisesta [iprinfo.com] (Rough translation: "Buyer has right to resell the copy of a program he has bought - Supreme Court decision on the ending of distribution right").

All the companies involved were: Adobe Systems Incorporated, Autodesk Incorporated, Borland International Incorporated, Lotus Development Corporation, Microsoft Corporation, Novell Incorporated and Symantec Corporation.

Re:Not really adding anything important but...

[Mister Whirly]

I know this isn't the point you are trying to make, but call MS and explain to them what you are doing. They will issue you another key with relatively few hassles. I have done this a few times in the past and have had nothing but helpful MS employees who have issued a new license key with minimal questions involved.
And no, I am by no means a MS fanboy, just relating my real-life experiences with MS keys and hardware changes.

Re:First-Sale cuts both ways

[cfulmer]

Pardon?

      This is exactly the sort of thing you can do under the first sale doctrine. First sale exhausts the distribution right. (except for software and music. See Section 109(b)(1) of the copyright act.) And, renting is distribution.

Re:Workaround

[Experiment 626]

Wow software is free, and always has been. YES, you pay for the pretty book and the pretty package, but you can always just borrow your friends for the install instead. Where you pay is for the account on their servers.

You can install WoW from your friend's disks, but when you go to create an account, it makes you enter your own CD key (plus the key for any expansion you want to activate). They could remove this requirement and it would indeed work as you describe, but for now Blizzard expects to get money for both the software and the account fees.

Re:Likewise in Finland since a number of years

[vinsci]

Another reference, this one in the trade newspaper Tietoviikko (literally "informationweek"): Lisenssi ei estä jälleenmyyntiä [tietoviikko.fi]

Pfft.

[cfulmer]

Certainly more than a non-event.

      The denial means that if Vernon's version of the facts are correct, he wins. The only question is whether his version of the facts are correct.

      The case still goes on, but the opinion is good precedent for future cases with similar facts.

Re:Expect it to settle out of court

[compro01]

It has not been ruled upon. The author is clueless. They have merely been denied a summery judgment, which means this is going to trial, not that the trial is over.

Re:Not really adding anything important but...

[sumdumass]

This isn't a matter of keeping a copy. US copyright law already states that if your going to sell your copy of computer software, you have to sell all copies of it.

The laws covering computer programs [cornell.edu] Section 117 a 1 and 2 say that you can make a copy of the program as an essential step in using it (a fancy wording for installing it) and that you have to destroy or transfer the copy with the program is you sell it.

(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

So in the case of the little guy, or any guy, keeping a copy of the software without the copyright holders permission is still a violation of copyright. With this ruling, no one can install a copy of software then sell the product on ebay without removing it from their computer first. The little guy needs to do nothing because he is still in as much control of his work as the copyright law originally allowed.

Re:Not really adding anything important but...

[Lijemo]

how about if the little guy writes software, and everyone who buys it goes straight to ebay and resells it, without uninstalling...

then the little guy is out of business...

Um, where are you getting the "without uninstalling"? That has nothing to do with this case or TFA.

This court case says that if I buy a copy of Windows Office and decide I don't like it, that I can uninstall it and sell it to someone else. Previously, software companies had been trying to claim that even after uninstalling the software and destroying every backup copy, you still couldn't sell the original CDs.

Re:First-Sale cuts both ways

[tungstencoil]

With all due respect, I will have to agree with Cinnamon-Roll guy (my family, too, was involved with independant video rental business in the late 80s through the 00s).

Where I believe you are somewhat incorrect is that, in the catalog you saw, you saw prices higher on items not released for "general sell-thru". Recall back in pre-DVD days, many videos were available for rental only first (for a few months). This was because of the artificially high markup (around $100 a tape, circa 1998). Consumers simply wouldn't pay it. When the need for rental stores to buy 10 or 15 copies died down, it went to sell-thru. This was how the movie companies countered the rental market at the time. Interestingly, this was primarily brought about by the stores selling their used copied once the need to have a lot of copies of something died down. To the rental houses, the studios argued they had to make their money somehow, and it wasn't fair to sell a movie out for initial rental for just a few bucks and have it sold for nearly that much used.

Exceptions were made (think Disney or something that was thought to be a major-selling video, like "Titanic") - and for those that the consumer paid $19.95 for, the video stores paid about $15.

Agree: it did make for some fun explanations why that new release that baked in the hot (Michigan, in my case) sun in their car was $125 to replace, when they were used to spending $20 for a tape. It's all about the timing.

The germane point here is that they weren't paying a special licensing fee or anything to the studios (though, in later years, Blockbuster and Hollywood entered into "revenue sharing" agreements that allowed them to get a jillion copies of a movie) - they were simply paying an inflated price set by what was essentially a monopoly for a particular title: the studio.

Re:Autodesk = a true evil empire

[coats]

This is exactly the situation the judge's ruling doesn't cover: he said that if there's some kind of re-possession, it is a license; if not, it is a sale (and gave the relevant Ninth Circuit precedents). Ceasing to work after the license-term amounts to re-possession; Autocad doesn't do that, so it was a sale.

Re:First-Sale cuts both ways

[pegr]

Public performance is a right outside of copyright and first sale. You are correct that I cannot exhibit a copyrighted film (video) work without permission, regardless of who owns the copy.

Public performance is a seperate right than renting, however. As an owner of a copyrighted work (except for phono recordings and computer software, I guess they have better lobbiests!), I can rent to whomever I please without permission of the copyright holder. Why you would confuse the two is a mystery.

Re:First-Sale cuts both ways

[geekoid]

when did you do that? IN 1998 they started getting a percentage.\
", the video store pays the studio a one-time fee of $2-$4 per videotape and then pays 40% of rental revenues. "

http://people.ischool.berkeley.edu/~hal/Papers/history/ [berkeley.edu]

Re:Workaround

[terrymr]

Not really because the first months play is included with the purchased game. This is in addition to any trial period you may have obtained when you installed the software.

Re:Expect it to settle out of court

[Anonymous Coward]

If the court ruled on an issue of law, it has been ruled upon, and a subsequent settlement (or even an adverse jury verdict on another issue) would not change the ruling. Juries don't get to decide issues of law.

Re:Workaround

[KDR_11k]

Did you read the EULA when you bought them? There's a paragraph on resale, you have to tell Valve to unregister your key and pay a handling fee, then you can give the key to someone else (if you can convince the buyer that the key is indeed unregistered is another matter). Or well, at least that's the Half-Life 2 (retail) EULA, I haven't bought any games on Steam yet.

Re:Workaround

[Anonymous Coward]

Wow software is now free. But originally you had to go to the store and buy it in a box.

Re:there is NO SIGNIFICANCE to this ruling

[gnasher719]

I just read this article. The author has no idea what a summary judgment motion is, nor the significance of having it denied. Summary judgment motions are just long shot motions brought early in a case to try to dismiss it if there are no facts in dispute. The significance of a *denial* of such a request simply means there are facts in dispute, or the law isn't so clear. IT IS A NON-EVENT. Nobody has won -- the case simply proceeds.

You should have read what the judge wrote. In this case, there are no facts in dispute. However, in a motion for summary judgement the judge can only rule for the moving party (in this case Autodesk who asked for the summary judgement) and the case is closed and won by the moving party, or the judge can deny the motion for summary judgement and the case goes on. The judge cannot possibly, at this point, rule against Autodesk. However, in this case, the judge can use exactly the same arguments to finally decide the case against Autodesk when it is time to do so.

Not so new

[softwareStalker]

It sounds like this is the first time first-sale doctrine has been applied to software. Nope, in 2001 a similar ruling was made backing up the little guy. Softman v. Adobe. Check it out.

Re:Workaround

[Phrogman]

Actually, its not a CD key with most MMORPGs, its an account key that you get. I can install any of the MMOs I have on any computer I want, but I have to have an active account (determined by my registering the key the first time I play the game) to do so. If you have City of Heroes/City of Villains, Star Wars Galaxies or Age of Conan on your system, I can use your computer to log into my account and play any time. When you buy MMO software, what you are buying is the license key for an account, plus any other stuff that came with the box in the way of manuals, maps, in game bonus items etc. The contents of the CD are there but not tied to the account directly in any way. Since you *MUST* log into one of their servers to play the game, this system is enough in the way of security in most instances. The only problems come when someone manages to find out how to generate their own keys, in which case they may register their account with the illegitimate generated key before you can do so, in that case the person who can send in the manual with the key on the back usually gets awarded the account.

Re:Psystar

[drinkypoo]

You can not photocopy the book, leaving the book in tact, modify the copy then sell that copy, even if it's bundled with the book.

Ah, but keep in mind, the software publisher is claiming not that you are buying a piece of software with which you can do whatever you want, but a license to use a piece of software. This decision says that that license is transferable. And first sale law already said you could make modifications and resell something.

Psystar is buying a license to install the software; they are doing so. They are then modifying the software, which is their right. They then resell the system, and responsibly transfer the license along with it. Reselling the system is within their legal rights; reselling the software has now been shown to be within their rights as well. Modifying the software is also within their rights. They are not representing the software as unmodified, so they are not committing a breach of trademark law. I'm not clear where you think the violation lies.

Re:First-Sale cuts both ways

[denttford]

You know, google does know all. Nothing's so anonymous with a well crafted search.

This wasn't hard to find. [laughingloon.com]

Re:Workaround.. PLU...

[davidsyes]

They already have the PLU, which is just ONE way to create an extreme hassle to would-be second-owners, and a deterrent to first-purchaser resales.

Basically, the PLU, or portable license utility, is installed with every protected Autodesk product. Well, at least with AutoCAD. After you register and authorize your licensed copy (electronically or over the phone, etc), the PLU ties that license to that machine. If you install and try to run another instance of the software on another machine, or even reinstall on your own after a total disk wipe, you'll have to re-register or at least get re-authorization.

http://discussion.autodesk.com/thread.jspa?threadID=608297 [autodesk.com]

http://discussion.autodesk.com/thread.jspa?threadID=478591 [autodesk.com]

http://www.autodesk.co.uk/adsk/servlet/item?siteID=452932&id=6005296&preview=1 [autodesk.co.uk]

http://www.cvis.com/MP/Using_the_Portable_License_Utility.htm [cvis.com]

http://www.tovna.com/main/softlock.htm [tovna.com]

http://www.cadforum.cz/cadforum_en/qaID.asp?tip=2396 [cadforum.cz]

When you want to legally for a day or a week or whatever transfer the user activity from one machine to another, you activate the PLU, specify the target machine to which the license is to be sent. When done, do the same on the current machine to get the license back to your original machine. If you botch it, you've got to call Autodesk. Botch it TOO many times, they'll forever deny re-authorization for that particular license.

If confused, contact Autodesk, or go visit the AUGI and other sites.

I don't particularly have a problem with the PLU. But, if the PLU is used to deprive resale by legitimate license holders who want to dispose of the product and maybe use a competing product, then "locking in" the user is heinous. I use AutoCAD for WORK. But, for my hobby, I use TurboCAD and Punch! ViaCAD and marine products meant for ship design. AutoCAD 2009 and even 08 have some nifty features, but about all I don't like about TC & VC is their pseudo-command-line is limited to single strokes, not multiple characters. That makes me think AutoCAD has some "patent" lock or threat against other CAD companies attacking AD on the command line. If that is TRUE, then that'll be yet another reason for me to continue using the smaller guy for my non-work activities.

Re:First-Sale cuts both ways

[Knara]

In early 1998 content providers came up with a different model. In one variation, the video store pays the studio a one-time fee of $2-$4 per videotape and then pays 40% of rental revenues. This earns the store a profit per rental of about $2.25. (Figures taken from Said (1999).) With this sort of ``sharecropping'' arrangement, stores no longer have strong incentives to economize in video purchase, reducing the queuing for customers. In fact, this is the form of contract used in Blockbuster's ``guaranteed in stock'' promotion.

That was an example of Blockbuster's contractual arrangement with "content providers" so they could do their "guaranteed in stock" promotion without having to wait for distributors to have an item. By getting their copies directly from the content providers, they didn't need to hope that they could get the amount of copies they needed to back up their promotion without giving away lots of free rentals. In exchange, the content provider got some revenue from the arrangement. It is not a description of whether or not Blockbuster has the right to buy a copy wherever they want and then rent it.

Reading for context is a useful skill.

Re:First-Sale cuts both ways

[creysoft]

How can you not see the difference between renting and reproducing something? Of course you can't make prints of someone else's painting, just like I can't make DVD copies of Titanic and sell them on the Internet. You could, however, rent the painting out to a museum for 6 months. Or rent it out to your neighbor for one night for a party. The basic principle of copyright is that you can't duplicate someone else's work without their permission. You can loan it out, rent it out, shoot it into space, burn it, or attempt to have sex with it, but you can't copy it. There are a few other things you can't do, such as public exhibition, or creating derivative works, but renting is NOT one of the restrictions. Except for phonorecord and software.

Re:there is NO SIGNIFICANCE to this ruling

[Anonymous Coward]

Summary judgments are not non-events. I'm not sure why you argue that they are. Cases can be decided on the acceptance or denial of summary judgments alone, and the summary judgments establish points of law and facts that the case can proceed on.

While the case is proceeding, the denial of summary judgment itself has implications for first sale and safe harbors. The summary judgment states that the transactions are legal.

For info from the guy who wrote the book on copyright, see William Patry's blog entry.

http://williampatry.blogspot.com/2008/05/first-sale-victory-in-vernor.html

Re:First-Sale cuts both ways

[Mr. Beatdown]

There seems to be a rampant misconception here on Slashdot today, So I'm posting this a 3rd time.

For more clarity, The actual cite USC Title17, Chapter 1, Section 109 [bitlaw.com] describes the situation where the owner of a copy of a lawfully created work may dispose of it, without the consent of the copyright owner. "the owner of a particular copy ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy"

This is a clear exemption from the blanket rights granted to copyright holders, under section 106(c) [cornell.edu]. Though 106(c) gives copyright owners "The exclusive rights to .... distribute copies or phonorecords of the copyrighted work to the public by sale ... rental, lease, or lending" these rights have exemptions.

The rights granted to owners of a copy, but not the copyright, to dispose of a copy by sale or otherwise are established. Rental, leasing and loaning are implicit in the "or otherwise" The rights do not extend to renting, loaning, or leasing computer programs or sound recordings because of 109(a)(1)(A).

IANAL, but that's the facts.

Re:Troll??

[ejecta]

Hmm, AM Radio is alive and well here, the AM stations are frequently in the Top 5 most listened to according to Neilsen Ratings.

I'd say AM is very, very far from being 'dead'.

(here = Australia)

Re:Not really adding anything important but...

[story645]

Some of us don't have much of a choice, if any. Visual Studio is one of my least favorite compilers, but if the professor's giving me code that compiles in VS and requires a hell of a lot of work to compile in anything else-well VS it is.
MatLab is the same, 'cept funner 'cause it's got it's own proprietary language and I had two classes that used it. And then there's this horrible suite for psych experiments called Presentation-that's what the person running the experiment was using, and had no authority to fight him on it. Of course I can do almost anything I need MatLab or Presentation for in python, but that requires forcing people to switch and learn new techs.

Re:No lawyer

[daigu]

Actually, he started with no lawyer, then Public Citizen [citizen.org] gave him some help. I found this information in a copyright blog [blogspot.com] by one of Google's lawyers mentioned further down [slashdot.org] in the responses to this article.

Re:Not really adding anything important but...

[bar-agent]

AutoCAD is used for more than just architecture, for example, designing refrigerators or machining.

Re:Workaround

[TheGavster]

At least the site license sold to the local technical school near me requires a dial-in to validate it the first time each feature is used. It presented an interesting problem for creating restoration images, as even after validating the install on the (internet connected) master machine, the (more restricted) user machines would periodically die as the user found a feature that the administrator hadn't used before taking the image (knowing of the scheme, the master machine was worked through a series of exercises before the image was made).

Understanding Software Licensing "scam"

[Anonymous Coward]

Understanding software licensing scam

1. The whole software licensing scam is about companies misusing "work on hire" and "copyright" laws.

2. Companies hire people to write software on work on hire basis and then sell the software on copyright basis.

3. The reality is "work on hire" is for internal use of the company only, work on hire does not automatically grant copyright of work produced on hire.

4. Copyright can be obtained only by paying the original author of the work "royalty" for each copy of the work.

5. To overturn software licensing all that someone has to do is prove that software publisher is not paying royalty for each copy to the software authors.

6. Where there is huge profits there is always a "scam" behind it!

Re:Workaround

[TheoMurpse]

See, I really disagree with this, as it basically implies that "any contract you ever sign is bullshit."

Where did I say that?

You said it right here (assume that the license says you cannot transfer software):

Preventing someone from using it just because they are not the original owner of it is contrary to the first-sale doctrine.

Still, I'll be honest: my response was partially targeted at you, and partially because I was getting frustrated at the constant blubbering and complaining about what the law is when it makes perfect sense: you sign an agreement, you are bound to the agreement (less a few exceptions such as unconscionability).

Did you miss the paragraph about the EULA explicitly stating "You may permanently transfer all of your rights and obligations..."?

I clearly stated I didn't RTFA. However, not all EULAs give this right. In fact, there are plenty that do not.

Regarding returning the software if you don't agree:

...return. It's not the law

I wasn't aware you were such an authority on what the law was. Considering that you freely admitted that:

[you] don't know where exactly the law stands on this yet.

I'd cite you the case law that says otherwise, but since this is licensing law we're talking about, that's 50 states' worth of case law I'd have to cite.

Basically, it comes down like this: the agreement is finalized when the consumer accepts or rejects the license agreement. This is similar to a long history of contracts and licenses being taken care of via post mail; clickwrap and shrinkwrap licenses are not new constructions. I'll have to email one of my classmates: his seminar paper was written analyzing clickwrap, browsewrap, and shrinkwrap licenses. Clickwrap and shrinkwrap licenses are actually pretty uncontroversial in the legal world. Browsewrap is more contentious than the other two. I could post some of his discussion perhaps.

In any case, until you click "accept," the deal is not finalized, and you have the right to go to the other licensor and demand your money back. The licensor has to give it to you. If not, they have committed theft.

They are unconscionable, primarily because they are not presented until after the sale is complete and attempt to impose conditions and restrictions that were not agreed upon at the time of the sale.

The requirements you're implying should be imposed on contract and licensing law with these statements are staggering. You're basically demanding that all agreements be completely performed in person simultaneously or else they are unconscionable.

You're saying that stores should be required to show the licenses to potential licensees before they purchase software. Do you know how frigging unworkable that is? Good lord, almost every freaking consumer product you buy now has licenses included. Can you imagine Christmastime, stores full of people trying to read agreeements before they can buy. It's even worse then, because if they're in a hurry, they can either (1) wait hours to read and buy, or (2) buy and absolutely and irrevocably waive their right to refuse the agreement later. Hell, the current regime still permits post-purchase refusal and refund, but what you're suggesting would make it worse for the average consumer.

Finally, the time of the sale is not the end of the license formation process, and it does not have to be. Again, how do you think people in faraway lands have done business for decades? By mailing contracts back and forth, and including partial performance as part of the deal. You buying the software is partial performance of the agreement. Later, when you click "agree," that's the rest of the performance. The agreement is not finalized until you've fully performed. It's basic, black-letter contract law.

it

Re:Workaround

[rtb61]

Quite simply to cut though the BS no contract, absolutely no contract can infringe upon statutory law. Lawyers are quite capable of utterly invalidating any contract that has just one clause that infringes upon statutory law, at which point all the conditions of contract revert to default general conditions of contract and any ambiguities will go against the party that wrote/supplied the contract.

So first sale doctrine under copyright law is a statutory law hence you can not write a civil condition of contract that will infringe that law, you can of course still do it but, when challenged in court that contract can then be voided.

When it comes to computer games it does make it very interesting fro a bunch of companies that only allow one of a registration of the game or a limited number of installation possible, as that does infringe upon a person right to sell the game when they no longer want it.

Currently the real problem is that government consumer protection authorities are completely failing in their duty of responsibility in ensuring a lot of this crap is nipped in the bud, in actively prosecuting companies that write criminally deficient contracts. Corrupt governments pandering to corporate interest have stripped away all power from consumer protections authorities, so that corporations can write criminal contracts and then force consumers who want to challenge them, to spend large amounts of money in court in order to do so.

Re:Workaround

[ajs318]

No. Statutory Rights are sacrosanct. You cannot waive them. If you sign a contract that says you are not going to do something the Law of the Land says you can do, you can go ahead and do it anyway and not be found in breach of contract.

For example: using an object that employs someone else's patent is infringement, but if they give you a license to use the patent, then they have waived the right to sue you (even though 35 USC gives them the right to sue you for it were it not for the license).

Bullshit.

They have not "waived their right to sue" or anything like that. Patent law states that certain acts require advance written permission, and a patent licence is exactly that permission. Their right to sue never existed in the first place.

Re:Not really adding anything important but...

[iq in binary]

*Ahem*

NO ONE* is designing in 2D anymore. Creating isometric and orthogonal views? What a complete waste of time.

You must be one of the idiot engineers that I have to deal with on a daily basis that thinks I can pull GD/T out of my ass from a 3D model.......on a 2D piece of paper. As a machinist and engineering student, I see all this idiocy all the fucking time. EVERYTHING you design has to be manufactured, and the most important part of the manufacturing process is the measurement, the tools for such making up 3/4 of a machinist's toolbox. What you should be saying is that nobody is NEEDLESSLY designing in 3D. The majority of parts you will see as an ME will be rather simple, and much easier to design in a 2D environment, and MOST importantly, easy to read by the manufacturing staff that is going to fabricate them. Yes, there are contours and surfs that need to be designed in a 3D environment, but that is a tiny minority. The most prevalent CAD/CAM package on the market is primarily 2D with a robust 3D package that can be used (albeit painstakingly) to render the odd surf here and there.

Isometric and orthogonal are there for a reason, they're going to be the basis from which the part is manufactured. So unless that fuzzy-bunny-lala-land in your head comes to fruition any time soon, you're going to need them. At least, if you've even learned basic blue-print reading. The most common recurring problem I've seen with prototype and small run manufacturing is that the engineer isn't even drawing up the blueprint. Nine times out of ten he doesn't even know how. He designs the part and some poor CAD-Tech transfers it to a block blank, inevitably making mistakes along the way, and %90 of the time making the part more expensive by virtue of setting tight tolerances where they don't need to be. The %10 of the time the ME does know basic blueprint reading, he still makes the part needlessly expensive because he never spent any time doing assembly, and thinks that he needs bolt hole locations within .001".

This "New-School" elitism of yours is the reason a kid like me--who is working the old-school to get into the new-school--is going to be your boss, making twice your salary, at half your age. Old technology is not bad as long as it's proven.

Re:Not really adding anything important but...

[jonniesmokes]

As an ME who graduated in 1996, I saw it all. I did an immense amount of work in Acad R12-14 in 2D and learned all the tricks to build the orthogonal and isometric views. Soon, ProE and SW hit the scene and I had to spend nearly 1000 hours in each learning how to build models and make decent 2D drawings. It was hammered into me from my mentor, that the drawing is a contract and that it alone can convey intent.

On a whim I took an architecture class and learned to use a mayline and paper/pen/pencils to do the same 2D tricks I had done in Acad and Vellum. Weirdly enough, my first real engineering position was at a shop that used hand drawings with a mayline. Productivity was low, but very few mistakes were made.

I later worked in a Pro/E shop and designed plastic injection molded parts, so almost everything was 3D. We still needed 2D drawings for documentation and there were a few projects with machinining and the intent still had to be put into the drawings.

It'll be a long time before 2D drawings are eliminated because they are the only open document format for making engineered parts. And they do a great job of conveying intent and contracting the job. That said, I really like parametric design, because you can update the location of a bolt hole in the assembly and it goes all the way through to the 2D drawing. What used to take an hour or a day, now take seconds.

Knowing how to use your tools is just as important as having them. 3D programs are really great at increasing productivity, but if all you are doing is speeding up the design of something broken and expensive, then you are just getting nowhere faster.

Re:Not really adding anything important but...

[IpalindromeI]

Visual Studio is not a compiler. It's a development environment. The compiler it uses ("cl.exe") is included in the .NET Framework SDK, which is a free download. The linker is in there, too.

See this link [winprog.org] for more info.

Re:Not really adding anything important but...

[Phil_at_EvilNET]

I'm glad you said it. I've been both a mechanical draftsman and an architectural draftsman and if anyone thinks for a minute that a carpenter wants to see some fancy, candy ass 3D drawing of a house on paper then you've never been a laborer or a framer, and I've been both. In my experience, tradesman, especially carpenters, want accurate, easy to read blueprints that don't have a bunch of eye candy. In the same respect, the guy setting up a steel coil slitting line doesn't give a damn that someone drew the slitter rolls in 3D. He's concerned that the slitter, flattenter, stacker, shear, etc. are all lined up properly. They want flat plans for this. 2D plans. 3D, IMO is great for modeling, great for design theory, and great for places that use CNC machining and like all things there's a PLACE for 3D, and there's a place for 2D. Anyone that thinks 2D drafting is obsolete or outdated has probably never gotten their hands dirty either.